Draft Facebook decision did not ‘land like a spacecraft’, court told

Data commissioner opposes Facebook’s action seeking to quash transfers inquiry

A preliminary draft decision by the Data Protection Commissioner (DPC) to inquire into the legality of data transfers by Facebook Ireland to its US parent did not suddenly land like a spaceship on the social media giant, the High Court has been told.

The facts which gave rise to DPC Helen Dixon's decision to conduct the inquiry and suspend transfers were well known from the long history of complaints and litigation about them from Max Schrems, the Austrian privacy and data rights campaigner, Michael Collins SC, for the DPC, said.

It was because of this history and the facts of it that Facebook was fundamentally mistaken in claiming it was denied fair procedures with no opportunity to make submissions before the DPC made her decision, he said.

It was a mistaken premise to suggest the preliminary draft decision arrived “like a spacecraft out of nowhere and landed in Facebook’s garden without any indication that it was coming”, counsel said. That was “simply wrong” and one had to look at the facts which led to it because this was going to be a facts-based inquiry, he said.

Mr Collins was beginning submissions on behalf of the DPC in opposition to Facebook’s action seeking to quash the transfers inquiry and suspension decision. The inquiry is stayed pending the outcome of this case.

The case originally stems from challenges to DPC decisions by Mr Schrems, who is a notice party.

Facebook claims it was denied fair procedures and an opportunity to be heard.

It also says there was a failure by the DPC to conduct an inquiry before she reached her draft decision and she prejudged or prematurely judged the matter.

It claims its business, which has 410 million users in Europe, will be devastated if the decision is allowed stand.

The DPC denies the claims.

GDPR regulations

Mr Collins, for the DPC, said no decision had been made in relation to lawfulness or about alleged breaches of GDPR regulations and Facebook will have every opportunity to make full submissions in relation to the matter.

Facebook complained that the 21 days it was given to respond to the preliminary draft decision was not enough but the DPC believed three weeks was a reasonable time on the facts available at that time, counsel said.

Facebook will be afforded the necessary time to make whatever submission it wants and is not “shut out” from doing so as it alleged, he said.

It could be said, if Facebook had put as much time, energy, work and expenditure into making its submission as it had for this court case, the whole process would be a lot further advanced at this stage, he said.

The advancement of the inquiry did not appear to be what Facebook wanted, he said. It instead wanted “some sort of political decisions” and while this may be a legitimate objective, it also appeared to be the principal reason the case was taken, he said.

The DPC inquiry is tailored to achieving natural justice and its prior history, the Schrems cases, was critical to understanding whether the procedure adopted was in conformity with the principles of natural justice. The DPC maintains it is, counsel said.

The case continues before Mr Justice David Barniville.